Lyfemed Medicare (M) Sdn Bhd v Its Testing Services (M) Sdn Bhd (WA-22NCvC-572-10/2023)

LYFEMED MEDICARE (M) SDN BHD (No. Syarikat: 202101016651)

FERDI GROUP SDN BHD (No. Syarikat: 201101026003)

RAHIYA BINTI KUNJI MOIDIN KUTTY (No. K/P: 861218-75-5006) T/A LYFEMED MEDICARE (No. Pendaftaran: 202003084890(003095621-D)) ...PLAINTIF-PLAINTIF DAN ITS TESTING SERVICES (M) SDN BHD (No. Syarikat: 7379-A) ...DEFENDAN

The Defendant’s application (Enclosure 72) which was filed on 26th March 2025 is made pursuant to Order 12 Rule 10 Rules of Court 2012, to attempt to halt this civil suit on the ground that there is 31/07/2025 15:44:24 WA-22NCvC-572-10/2023 Kand. 98 allegedly a contractual clause for disputes to be heard by the English Courts.

After hearing submissions by learned counsel, I decided that this Court ought to dismiss the Defendant’s application. No costs was ordered because the Plaintiffs had been allowed to amend their Statement of Claim to add a third plaintiff and no costs had been ordered for that application.

The Defendant is in the business of carrying out inspection of goods purchased by its customers to ensure that they are of merchantable quality.

In April 2021, the 3rd Plaintiff appointed the Defendant to carry out inspection of Nitril Examination Gloves for the purpose of export to

The appointment of the Defendant was made by the 3rd Plaintiff by signing the Inspection Service Arrangement forms dated 22nd April 2021, 30th April 2021, 8th May 2021 (inspection cancelled), 10th May 2021 and 23rd May 2021 for the inspection known as Final Random Inspection and also Loading Inspection of 16,000 cartons of Nitril Examination Gloves (‘’the Goods”).

The Plaintiffs are suing the Defendant because the Goods were rejected by their purchaser in USA due to defects that were apparently not detected by the Defendant during the inspection in Malaysia. The Defendant’s Submissions 7. As mentioned above, the Defendant’s application (Enclosure 72) which was filed on 26th March 2025 is made pursuant to Order 12 Rule 10 Rules of Court 2012. Screenshot of the prayers and grounds of application are pasted below: GUAMAN NO.: WA-22NCvC-572-10/2023 8. Learned counsel for the Defendant referred to the following clause (“the said Clause”) which the Defendant is contending to be a contractual clause in the contract between the parties: “This Agreement and the Proposal shall be governed by English law. The parties agree to submit to the exclusive jurisdiction of the English Courts in respect of any dispute or claim arising out of or in connection with this Agreement (including any non-contractual claim) relating to the provision of the Services in accordance with this

The Defendant’s learned counsel further submitted that the Defendant’s application is pivoted upon their contention that the said Clause forms part of the contract and ought to be held as binding on the Plaintiffs.

Several authorities were cited by learned counsel for the Defendant, the most relevant one of which is probably the judgment of the Court of Appeal in Open Country Dairy Ltd v Able Food Sdn Bhd [2021] 7 CLJ 716. The Plaintiff’s Submissions 11. Learned counsel for Plaintiff submitted several points to contend that the Defendant’s application should not be allowed. The main points submitted by the Plaintiff are as follows.

First, it was contended that the issue is res judicata because the issue about jurisdiction had been raised during the hearing of the Defendants’ earlier application (Enclosure 12) to strike out the Plaintiff, which was dismissed by the Court on 12th February 2025. GUAMAN NO.: WA-22NCvC-572-10/2023 13. Secondly, it was submitted that Intertek’s Standard Terms and Conditions are not applicable to the contract between the parties herein, stressing that the terms and conditions were not contained in the document signed between the parties.

Thirdly, learned counsel relied on the Forum Conveniens point (mis-spelled in his submissions as “Convenience”). It was submitted that even if the terms have been validly incorporated into the contract between the parties, this Court nonetheless has jurisdiction to hear the matter as Malaysia is the most convenient forum. Analysis of the Facts and Law 15. Even though the Defendant’s previous application was a striking-out application under Order 18 rule 19, the said Clause had been raised as one of the grounds in support of the striking-out application. This is visible from the following screenshot of the earlier application which shows that the jurisdiction clause was cited as one of the grounds, in para (e) thereof.

Further, I noted that paragraph 8 of the Defendant’s affidavit, which was filed in support of the earlier striking-out application, specifically referred to the said Clause as a ground to justify the striking-out application. A screenshot of the same is shown below: GUAMAN NO.: WA-22NCvC-572-10/2023 17. The Court of Appeal in Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 MLJ 57 held as follows:- “(1) Once a judge makes a ruling, substantive or procedural, final or interlocutory, it must be adhered to and may not be reopened. Although the first decision was made on an interlocutory matter which was purely procedural in nature, it was nevertheless binding on the court and on all parties to the lis until its reversal on appeal. The decision of the judge overruling the respondent's preliminary objection rendered the point taken res judicata…”

Applying Hartecon JV Sdn Bhd (supra), I am of the view that since the said Clause had been raised as one of the grounds in support of the Defendant’s striking-out application (Enclosure 12) – which this Court had dismissed – it is not open to the Defendant to raise the same issue again in a fresh application. With respect, it is an abuse of process simply because the law does not allow an appeal against a striking-out application under Order 18 rule 19 that had been dismissed.

One last point on this issue: I doubt that a statement in the Defendant’s affidavit/submissions, about ‘reserving’ its alleged rights to file a fresh application under Order 12 rule 10, is sufficient in law to prevent the principle of res judicata from operating to block the present application. In other words, based on this res judicata point alone, this Court may proceed to dismiss the Defendant’s present application (Enclosure 72). GUAMAN NO.: WA-22NCvC-572-10/2023 20. Just in case I have erred in holding the Defendant’s application (Enclosure 72) to be barred by res judicata, I shall proceed below to explain that I would have dismissed it on merits.

First, the issue of whether the said Clause was incorporated into the contract made between the parties, I am of the view that this is a triable issue to be decided by the Court during the trial of this action. It is my preliminary view is that the said Clause is not in their contract. My reasons for forming this view are as follows.

First, there is no reference to the Defendant’s alleged terms – which includes the said Clause – in the four Inspection Service Agreements made between the parties. I agree with the submissions by learned counsel for the Plaintiffs that notice of the Defendant’s alleged terms were not sufficiently brought to the attention of the Plaintiffs.

Further, the issue of whether the Defendant’s alleged terms were sought to be incorporated after the contract had already been entered into is one of the issues for trial, not to be determined summarily. The Court of Appeal of England made this clear in White v Blackmore [1972] 3 All ER 158 with the following words: “… the court must be satisfied that the particular document relied on as containing notice of the excluding or limiting term is in truth an integral part of the contract.”

A perusal of the Defendant’s Further Affidavit in Reply shows that the Defendant only states that a copy of the Defendant’s terms are available upon request. The document attached in the email to the 3rd Plaintiff had the title “Intertek Malaysia Application Form Inspection. The phrase “terms & conditions” is missing altogether. In other words, unless a customer is to access the Defendant’s website and to read the fine print, there is no way the customer (the 3rd Plaintiff in this case) would be able to see the said Clause which mentions English law and English Courts. Based on these facts, the judgment of the Court of Appeal in Open Country Dairy Ltd v Able Food Sdn Bhd (supra) is distinguishable.

Further, it must be noted that there are usually three categories of contract applicable in Malaysia when one party seeks the services of the other. First, it is a contract that is specifically drafted for the transaction between the parties, either by themselves or their legal advisers. The second category is one in which the customer is asked to sign on the service provider’s form where the terms and conditions would be clearly visible and legible. The third category is one which the Defendant in this case is pleading to be the situation, where one is expected to access the website or portal of the service provider to read the fine print.

With respect, if it is to be the third category – which the Court of Appeal in Open Country Dairy Ltd v Able Food Sdn Bhd (supra) has ruled to permissible in this day and age – each case ought to be decided based on its own facts. It is not difficult to imagine the injustice that could be caused if, for example, the dhoby shop (or laundrette to be precise) down the road is to state in its website that the laws of England are applicable and any dispute with its customers are to be heard by the English Courts. This, if upheld by the courts in Malaysia, would result in an absurd legal situation that Counsel for the Plaintiffs: Kumaradevan Rajadevan SOLICITORS FOR THE PLAINTIFFS: MESSRS GUNASEELAN & ASSOCIATES Advocates & Solicitors Unit B-2-1 Viva, No. 378, Jalan Ipoh, 51200 KUALA LUMPUR. Counsel for the Defendant: Joshua Teoh (Teng Wei Hun with him) SOLICITORS FOR THE DEFENDANT: MESSRS SKRINE Advocates & Solicitors Unit No. 50-8-1, 8th Floor, Wisma UOA Damansara, 50 Jalan Dungun, Damansara Heights, 50490 KUALA LUMPUR. CASES REFERRED TO: 1) Open Country Dairy Ltd v Able Food Sdn Bhd [2021] 7 CLJ 716. 2) Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 MLJ

3) White v Blackmore [1972] 3 All ER 158. LEGISLATIONS’ REFERRED TO: 1) Order 12 Rule 10 Rules of Court 2012.